Press Release: Appellate Brief In Falun Gong v. Jiang Zemin Filed January 20, 2004 In 7th Circuit Court

From Falun Gong plaintiffs' attorney Terri Marsh

January 20, 2004

Imagine an injury has occurred, for example the holocaust in Nazi Germany, and in spite of the tremendous loss of life and cost to the community of man, it is surrounded in a shroud of silence. The victims, thousands upon thousands or perhaps millions upon millions, cannot speak, and even if they could speak no one would hear what they say. There is not a shroud of evidence. Indeed no one outside of Germany knows of the camps, the terror and the tragedy. Indeed many claim that the holocaust did not occur precisely because of the silence which surrounds it. But of course the holocaust occurred. It's just that it occurred within the context of what Jacques Lyotard has terms "The Differand." An injury which renders the victims voiceless because they do not have the means to report it or seek redress in a court of law.

This is exactly the situation in China today. A genocidal holocaust has been launched against those who embrace the spiritual path of Falun Gong in China today. To say or speak the words "Compassion, Tolerance, and Truthfulness" is a crime in China, which brings up to 18 years of jail time, murder by torture, and other forms of torture so brutal as to render them virtually beyond belief. Infants are tortured as are young mothers, young children, the elderly, the strong and able. No one is excluded. The predicate (a.k.a. ticket of entry) is quite simple - the belief that by being kinder, by showing compassion to one's fellow man, by being tolerant of others' mistakes and foibles, one is a far better and more enlightened person. Difficult to imagine and even harder to believe!

As many have observed, in China when SARS began to spread and infect the population, the officials were told, 'Wherever SARS pops up, the officials in charge there will be immediately dismissed.' So no officials dare to report it. Just like that, SARS has disappeared.

But of course SARS won't disappear merely because the Chinese officials don't report its occurrence. Nor will the persecution of Falun Gong in China disappear because no one is permitted to report it.

This lawsuit is about the persecution of Falun Gong in China and the shroud of silence, which continues to surround it. To date thousands of persons have been jailed illegally, placed in labor camps without trial, force feds with saline solutions, which rupture lungs and tear stomach walls, injected with psychotropic drugs, which kill the person while leaving the body intact.

The persecution of Falun Gong in China is just that ¨C an assault on human persons by forcing them to renounce their beliefs or else endure what no living person can endure. The genocide in China today is a deadly assault which kills the person while leaving his or her body intact.

Today we are here in Chicago to try to lift the veil of silence which surrounds the persecution of Falun Gong in China; to give the victims of the persecution their day in court as promised to them by several treaties ratified by the United States..

More particularly, we filed an appeal today in the 7^th Circuit Court of Appeals asking the panel of Judges to reverse the opinions of the District Court dismissing the case on the grounds of head of state immunity. We contend

1. That the United States a strong interest in vindicating the human rights violations alleged by the plaintiffs in this case.
2. That "private acts" include acts of torture, genocide, and other violations of jus cogens norms.
3. That Former heads of state are not immune in U.S. or International law for serious human rights violations committed in a "private" capacity during their term of office and for violations of other international norms committed after their term of office.
4. That absolute deference to the Executive Branch's "Suggestion of Immunity" for former heads of state's acts of torture, genocide and jus cogens violations is inconsistent with important policy considerations and offends the doctrine of separation of powers.
5. That the District Court erred in finding that Jiang Zemin may not be served on behalf of office 6/10.
6. That personal jurisdiction exists over office 6/10.

Most importantly, our argument regarding the nonimmunity status of defendant Jiang is based on U.S. and International law and can be reduced quite simply to a balancing test. On the one side we have the divine rights of kinds, the notion that the king is above the law, the more modern view that a head of state must perform certain stately or sovereign functions while in power which may be diminished by subjecting him or her to lawsuit. On the other side, we have the dignity of the human person, the fundamental human rights of all persons to be free from torture and genocide. The modern notions of equality before the law - that no one, not even a king is above the law and can commit genocide with impunity.

Even if we allow that a head of state must perform sovereign functions while in office and that such functions are diminished by exposure to lawsuit, still in the context of a former head of state, no longer performing the functions of the sovereign, there are no countervailing reasons not to go forward with the case. Immunity does not exonerate a head of state from civil and criminal responsibility. Immunity is not the equivalent of impunity. Once he or she leaves office, as a former head of state, he is fair game. Defendant Jiang has left office. He is no longer immune from suit. The case should proceed to adjudication. No one should be permitted to assault the community of man by the commission of genocide and torture with impunity.

As Justice Jackson, the United States prosecutor at Nuremberg stated, "if certain acts in violations of [the law] are crimes, they are crimes, no matter who commits them."